In this episode of IP Talks, guest is Professor Jessica Silbey, a leading U.S. scholar of intellectual property law, talks about how creativity and innovation actually work – and why intellectual property law often gets it wrong.
Drawing on her interdisciplinary background in law, literature, and cultural studies, Jessica challenges the dominant assumption that IP law primarily incentivizes creativity through economic rewards. Based on extensive qualitative research with artists, scientists, and innovators, her book The Eureka Myth shows that creative work is driven less by ownership and exclusion, and more by intrinsic motivation, collaboration, identity, and community.
The conversation explores how the “lone genius” narrative embedded in copyright and patent law fails to reflect the deeply iterative and collective nature of real-world innovation. She discusses how this mismatch affects patent inventorship disputes, why U.S. patent law’s refusal to recognize simultaneous invention is problematic, and how doctrines such as fair use, idea–expression, and de minimis copying could be applied more generously to align law with creative practice.
The episode also dives into the often-overlooked doctrine of fact exclusion in copyright law, tracing its historical roots and explaining why keeping facts in the public domain is essential for democratic discourse and freedom of information. Turning to AI, Professor Jessica offers a nuanced perspective on training data, authorship, and control, arguing that copyright should focus on human agency rather than machine output.
The discussion concludes with reflections on potential copyright reform, the risks of over-enforcement in the digital age, and the broader role of IP law in supporting creativity, innovation, and democratic values.
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